A lot of North Carolina employees will be returning to work in the coming days and weeks.
Not all will want to, not during the coronavirus pandemic. For some there can be fear and anxiety.
Gov. Roy Cooper announced Wednesday that the state will transition into a “modest” Phase 2 of its reopening beginning Friday at 5 p.m. Employees at restaurants, hair salons and barbershops will be among those called on by their bosses to come back to the workplace and many will be needed immediately on Memorial Day weekend.
And if they refuse, what then? Will they be fired? If fired for refusing to work, will they forfeit unemployment benefits?
Those are a few of the sticky issues facing both employers and employees in a time when there is no vaccine for COVID-19, when no one can be sure that the workplace is completely safe when coming face-to-face or having close contact with customers or other employees.
As Cooper said in a media briefing this month, “We don’t want to put any employee in a risky situation.” Nor will they want to be.
Raleigh attorney Cate Edwards, who handles labor-law cases, said there is recourse for those who believe their workplace isn’t safe and isn’t contagion free.
“The first thing they should be asking their employers are what the precautions are that are being taken to keep the employees safe in the workplace,” Edwards told The News & Observer. “There’s no real standard that has been issued in terms of requirements, with the exceptions of requirements in Phase Two on the number of customers and reduced capacity and social distancing, those kinds of things.
“If you are in a particularly vulnerable population you may ask your employer to qualify you for disability. They may ask you to seek a note from a medical doctor saying you’re in a vulnerable population and your job would be unsafe. You may ask for specific accommodations. If it’s an industry where working from home is still an option. That’s an easy accommodation that some employers are likely to provide even if you don’t qualify for a disability.”
The N.C. Division of Employment Security (DES) has listed several circumstances in which an employee can show “good cause to refuse to return to work” while maintaining their unemployment benefits. They include:
▪ The employee has been diagnosed with COVID-19 by a medical professional, or a member of their household has the virus or they’re caring for a household member with the virus.
▪ The employee is 65 years old or older, or has serious underlying medical conditions such as asthma, diabetes, and chronic lung, kidney and heart disease.
▪ The employee is the primary caregiver of a child whose school or childcare facility is closed because of coronavirus.
▪ The employee believes there is too much risk at work because his employer has failed to comply with such safety guidelines as set out by the Centers for Disease Control and Prevention or Gov. Cooper’s executive orders on reopening.
“If the employer is doing all the recommended things and the person still doesn’t feel safe I think (the employee) is in a tough spot,” Carol Brooke, a senior attorney at the N.C. Justice Center in Raleigh, told The News & Observer Thursday. “If the employer is not doing everything that they need to be doing, then you go back to DES as to whether or not they have good cause not to return to work.
“It remains to be seen what will be considered to be unsafe. It remains to be seen how DES will actually interpret that practice. I understand a lot of people are in tough situations right now because it’s just not clear. ... . It’s a tricky situation for sure. Unfortunately there’s been a lot of concern about liability for businesses and not as much concern for the safety and health of employees.”
DES said it would determine eligibility for unemployment benefits on a case-by-case basis for those refusing to return to work. If an employee is then denied unemployment, a written appeal must be made in 10 days.
As of May 20, there have been 922,821 people in the state file a total of 1.25 million unemployment claims since March 15. About $2.34 billion has been paid.
OSHA guidelines on working during infectious disease outbreaks
An option for those who report for work but do not feel safe: contact the Occupational Safety and Health Administration.
OSHA, a part if the U.S. Department of Labor, asks employers to provide workplaces that do not pose any hazards that could lead to death or serious sickness, including infectious diseases. OSHA provides guidance on COVID-19 safeguards that can be implemented by employers, and North Carolina has its own OSHA-approved plan.
“It’s a best-practices kind of thing,” Brooke said.
Among the OSHA guidelines: “Be aware of workers’ concerns about pay, leave, safety, health and other issues that may arise during infectious disease outbreaks.. ... Informed workers who feel safe at work are less likely to be unnecessarily absent.”
Should someone return to work and feel there’s a danger, Edwards said, “You have the right and really the responsibility to report that to OSHA. OSHA reporting is protected under the law, so employers are not permitted legally to retaliate against an employee who reports what they believe to be an unsafe workplace to OSHA.”
Many employers will have such screening safeguards as daily temperature checks, increased sanitation and personal protective equipment as well as the use of face coverings.
“It’s not perfect and it could give us a false sense of security,” Dr. Mandy Cohen, secretary of the NC Department of Health and Human Services, told a group of business executives last week. “I would do the screening because I think it’s all about layers — layers of actions that businesses can take to keep their employees and customers safe. We have to make sure people feel safe coming back to work.”